Question Before the Supreme Court:-
Should people have the right to incite violence against the government? This would be an inevitable question in front of the judiciary while it decides on the fate of the law of sedition (Section 124A, IPC).
Four petitions are currently in the Supreme Court challenging the constitutionality of the law; the latest was filed by the PUCL on July 16. This question, however, is a flawed statement of the problem and would be detrimental to the debate.
The hearing in the SC on the first petition filed by two journalists — Kishorechandra Wangkhem and Kanhaiya Lal Shukla — was to begin on July 12, which was predictably adjourned as the government sought two more weeks to file a response despite having been issued a notice on April 30.
Kedar Nath Singh (1962) :-
The push-back from the executive to the judicial admission that the interpretation of sedition given in Kedar Nath Singh (1962) requires reconsideration is obvious, as the law has allowed successive governments to suppress political dissidence at will.
The point of attention is this judicial act of “reconsideration” and its possible consequences. If the legal challenge is efficacious, the SC will declare the law unconstitutional but if the court resorts to an alternative and instead reads down the law to a stricter and more limited interpretation of the offence, would that resolve the crisis of free speech that the law of sedition has currently posed in India?
To address this question, one needs to return to the earlier question about the right to incite violence against the government.
Originally defined as the act of inciting disaffection, which included feelings of enmity, hatred, contempt and disloyalty against the government, Section 124A was read down in Kedar Nath. The court ruled that unless an act of disaffection imports the tendency to result in disorder through incitement of violence against the government, the charge of sedition cannot be upheld.
The criticism against Kedar Nath is that it laid down an ambiguous test where the speech is measured on the parameter of its “tendency” to result in public disorder, through incitement of violence against government, without clarifying how the tendency of a speech was to be gauged.
Restricting oneself to a criticism of the existing doctrinal test would mean that while the use of a subjective word like “tendency”, prone to multiple interpretations, is a problem, the interpretation of the offence of sedition as the act of incitement of violence against the government, is not.
Incitement to violence against the government cannot be protected as free speech, it can only be subjected to a clear judicial test to delineate other forms of expression against the government which fall short of incitement to violence.
Sedition in USA:-
The American free speech test laid down in Brandenburg v. Ohio (1969) which calls for expressions to be penalised only where there is incitement to “imminent lawless action” is often cited as the ultimate standard to protect speech and has already been adopted as the threshold for upholding the right to free expression by the Indian Supreme Court in Indra Das (2011) and Shreya Singhal (2015). Subjecting sedition to the Brandenburg standard, hence, would answer the problems emanating from the 1962 test.
What escapes scrutiny in the above line of reasoning is the fact that the understanding of sedition as “incitement to violence against government” was an idea introduced by the court in Kedar Nath. To uphold the constitutionality of section 124A, the court needed to establish a relationship between expressions against the government and their repercussions on public order and security of state.
An Abstract Idea:-
The act of inciting disaffection was reinterpreted as importing the tendency to disorder through incitement of violence against the government. Incitement to violence was an imagined act, an afterthought that connected feelings of disaffection to consequences of public disorder.
Based on this abstract idea, the call for abolition of the offence of sedition is posed against a lacuna in the law which would allow for incitement to violence against government to be covered under protected speech. Consequently, the demand to nullify the law criminalising sedition can be perceived as protecting the right to incite violence against the government.
Counterposing the two weakens the demand for abolishing the law of sedition. To enter the question of the constitutionality of the law of sedition through this abstract idea of inciting violence against the government, creates a false dichotomy between freedom of expression and the right to resistance and debilitates the actual grounds on which the law should be assessed. Sedition was not an offence against public order or security of state. It was deliberately constructed as one to withhold the challenge of constitutionality.
In admitting a petition by General (Retd) Vombatkere on July 14, the Chief Justice of India asked the Attorney General representing the government “if the colonial law is still necessary after 75 years of independence”.
With the law of sedition granting the executive the power to persecute expressions against itself in the name of public order and security of state, the court can no longer raise questions but will have to resort to measures.
Attempts to read down the law or institute procedural mechanisms to forestall its arbitrary enforcement will not take away this power to persecute. Anything short of abolishing the offence of sedition will not help the restitution of the constitutional right to free speech.
Conclusion:-
The Law Commission also released a consultation paper in 2018 that said “In a democracy, singing from the same songbook is not a benchmark of patriotism. People should be at liberty to show their affection towards their country in their own way.” While issuing fresh guidelines and safeguards is one way of quelling the potential for its misuse, it will be more helpful if Section 124A is struck down altogether.
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In a diverse country like India, where each State is socially, culturally, economically, and politically distinct, measuring Governance becomes increasingly tricky. The Public Affairs Index (PAI 2021) is a scientifically rigorous, data-based framework that measures the quality of governance at the Sub-national level and ranks the States and Union Territories (UTs) of India on a Composite Index (CI).
States are classified into two categories – Large and Small – using population as the criteria.
In PAI 2021, PAC defined three significant pillars that embody Governance – Growth, Equity, and Sustainability. Each of the three Pillars is circumscribed by five governance praxis Themes.
The themes include – Voice and Accountability, Government Effectiveness, Rule of Law, Regulatory Quality and Control of Corruption.
At the bottom of the pyramid, 43 component indicators are mapped to 14 Sustainable Development Goals (SDGs) that are relevant to the States and UTs.
This forms the foundation of the conceptual framework of PAI 2021. The choice of the 43 indicators that go into the calculation of the CI were dictated by the objective of uncovering the complexity and multidimensional character of development governance
The Equity Principle
The Equity Pillar of the PAI 2021 Index analyses the inclusiveness impact at the Sub-national level in the country; inclusiveness in terms of the welfare of a society that depends primarily on establishing that all people feel that they have a say in the governance and are not excluded from the mainstream policy framework.
This requires all individuals and communities, but particularly the most vulnerable, to have an opportunity to improve or maintain their wellbeing. This chapter of PAI 2021 reflects the performance of States and UTs during the pandemic and questions the governance infrastructure in the country, analysing the effectiveness of schemes and the general livelihood of the people in terms of Equity.
Growth and its Discontents
Growth in its multidimensional form encompasses the essence of access to and the availability and optimal utilisation of resources. By resources, PAI 2021 refer to human resources, infrastructure and the budgetary allocations. Capacity building of an economy cannot take place if all the key players of growth do not drive development. The multiplier effects of better health care, improved educational outcomes, increased capital accumulation and lower unemployment levels contribute magnificently in the growth and development of the States.
The Pursuit Of Sustainability
The Sustainability Pillar analyses the access to and usage of resources that has an impact on environment, economy and humankind. The Pillar subsumes two themes and uses seven indicators to measure the effectiveness of government efforts with regards to Sustainability.
The Curious Case Of The Delta
The Delta Analysis presents the results on the State performance on year-on-year improvement. The rankings are measured as the Delta value over the last five to 10 years of data available for 12 Key Development Indicators (KDI). In PAI 2021, 12 indicators across the three Pillars of Equity (five indicators), Growth (five indicators) and Sustainability (two indicators). These KDIs are the outcome indicators crucial to assess Human Development. The Performance in the Delta Analysis is then compared to the Overall PAI 2021 Index.
Key Findings:-
In the Scheme of Things
The Scheme Analysis adds an additional dimension to ranking of the States on their governance. It attempts to complement the Governance Model by trying to understand the developmental activities undertaken by State Governments in the form of schemes. It also tries to understand whether better performance of States in schemes reflect in better governance.
The Centrally Sponsored schemes that were analysed are National Health Mission (NHM), Umbrella Integrated Child Development Services scheme (ICDS), Mahatma Gandh National Rural Employment Guarantee Scheme (MGNREGS), Samagra Shiksha Abhiyan (SmSA) and MidDay Meal Scheme (MDMS).
National Health Mission (NHM)
INTEGRATED CHILD DEVELOPMENT SERVICES (ICDS)
MID- DAY MEAL SCHEME (MDMS)
SAMAGRA SHIKSHA ABHIYAN (SMSA)
MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME (MGNREGS)